lence of the trial by jury is, that the jury are triors of the credit of the witneſſes, as well as of the truth of the fact.
“It is true, ſays this learned judge[1], that rape is a moſt deteſtable crime, and therefore ought ſeverely and impartially to be puniſhed with death; but it muſt be remembered, that it is an accuſation eaſy to be made, hard to be proved, but harder to be defended by the party accuſed, though innocent.” He then relates two very extraordinary caſes of malicious proſecution for this crime, that had happened within his own obſervation; and concludes thus: “I mention theſe inſtances, that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may with ſo much eaſe be impoſed upon, without great care and vigilance; the heinouſneſs of the offence many times tranſporting the judge and jury with ſo much indignation, that they are overhaſtily carried to the conviction of the perſon accuſed thereof, by the confident teſtimony of ſometimes falſe and malicious witneſſes.”
IV. What has been here obſerved, eſpecially with regard to the manner of proof, which ought to be the more clear in proportion as the crime is the more deteſtable, may be applied to another offence, of a ſtill deeper malignity; the infamous crime againſt nature, committed either with man or beaſt. A crime, which ought to be ſtrictly and impartially proved, and then as ſtrictly and impartially puniſhed. But it is an offence of ſo dark a nature, ſo eaſily charged, and the negative ſo difficult to be proved, that the accuſation ſhould be clearly made out: for, if falſe, it deſerves a puniſhment inferior only to that of the crime itſelf.
I will not act ſo diſagreeable part, to my readers as well as myſelf, as to dwell any longer upon a ſubject, the very mention of which is a diſgrace to human nature. It will be more eligible to imitate in this reſpect the delicacy of our Engliſh law, which treats it, in it's very indictments, as a crime not fit to be named;
- ↑ 1 Hal. P. C. 635.
